02-13877. Law Enforcement Authority at Bureau of Reclamation Projects

AGENCY:

Bureau of Reclamation, Interior.

ACTION:

Final rule with request for comments.

SUMMARY:

The Bureau of Reclamation (Reclamation) is issuing this rule to establish criteria for the use of non-Department of the Interior (Department) law enforcement personnel within a Reclamation project or on Reclamation lands. We are required by law to issue this rule in order to provide for the security of dams, facilities, and resources under our jurisdiction.

DATES:

This rule is effective on June 4, 2002. We must receive any comments on this final rule no later than August 5, 2002.

ADDRESSES:

Any comments on this rule should be sent to Commissioner's Office, Bureau of Reclamation, 1849 C Street NW., Washington, DC 20240, Attn: Henk Willems.

FOR FURTHER INFORMATION CONTACT:

Larry Todd, Director, Operations, Bureau of Reclamation, 1849 C Street NW., Washington, DC 20240, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Public Law 107-69 (November 12, 2001), an Act to Amend the Reclamation Recreation Management Act of 1992 (the Act) provides for law enforcement authority at Reclamation facilities. Section 1(g) provides: “REGULATIONS—Except for the authority provided in section 2(c)(1), the law enforcement authorities provided for in this section may be exercised only pursuant to regulations issued by the Secretary of the Interior and approved by the Attorney General.” As enacted, however, the Act does not contain a section 2(c)(1), as referred to in section 1(g), but does contain a section 1(c)(1), which “authorize[s] law enforcement personnel from the Department of the Interior to act as law enforcement officers to enforce Federal laws and regulations within a Reclamation project or on Reclamation lands.” The Department worked closely with the Congress to develop the language in this bill and believes that the congressional intent of section 1(g) was to refer to section 1(c)(1). Reclamation is promulgating these regulations consistent with that interpretation. The Act provides for law enforcement at Reclamation facilities in one of two ways: using Department law enforcement personnel (this would not require us to issue regulations or obtain Department of Justice approval); or, using law enforcement personnel from non-Department Federal agencies (other than the Department of Defense) and State, local or tribal law enforcement organizations (this would require us to issue regulations that the Department of Justice must approve). These regulations have been reviewed and approved by the Department of Justice, as required by the Act.

Since Reclamation plans to use some non-Department law enforcement officials, these regulations provide fitness and training requirements for non-Department law enforcement personnel. Under these regulations, Reclamation will:

(1) Entrust law enforcement authority only to law enforcement professionals possessing adequate education and/or experience, aptitude, and high moral character;

(2) Evaluate law enforcement programs and operations to ensure compliance with applicable Federal laws and regulations; and

(3) Ensure that qualitative standards are attained and maintained during the life of any cooperative agreements or contracts with other Federal agencies or with State, local, or tribal law enforcement organizations.

II. Public Involvement

Reclamation did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with 5 U.S.C. 553(b), Reclamation finds that good cause exists for not publishing an NPRM. The time-frame for the NPRM process, which would result in delaying the effective date of this rule, is contrary to the public interest because it may render individuals and facilities vulnerable to subversive activity, sabotage, or terrorist attack. Moreover, with the coming of Spring and planned events for Reclamation's upcoming Centennial, more people will be visiting Reclamation's many recreation areas. The measures in this rule are intended to address a potential terrorist attack as well as other criminal activities against Reclamation lands, dams and powerplants and related facilities or against individuals at those places. Immediate action is required to accomplish these objectives, and any delay in the effective date of this rule is impracticable and contrary to the public interest. For these same reasons, we find that good cause exists under 5 U.S.C. 553 (d)(3) for making this regulation effective less than 30 days after publication in the Federal Register.

On September 11, 2001, immediately following the terrorist attacks on the World Trade Center and the Pentagon, security at all Reclamation dams and powerplants was heightened, and armed law enforcement officers from Department agencies began around-the-clock patrols at key facilities. National security officials warn that future terrorist attacks against high visibility civilian targets may be anticipated, and all Reclamation facilities will remain on a heightened security status indefinitely.

Before enactment of Public Law 107-69, Reclamation generally had to rely on law enforcement personnel from other bureaus within the Department of the Interior to protect Reclamation facilities. While other bureaus have been very cooperative in providing law enforcement assistance, the continued need for heightened security at many facilities has strained available Department law enforcement resources. Furthermore, with the coming of Spring, Department law enforcement personnel will have to return to their seasonal duty stations. Accordingly, Reclamation will need to exercise its authority to contract or enter into cooperative agreements for law enforcement services with Department of the Interior bureaus and other Federal, State, tribal or local law enforcement agencies. We need to implement this authority as soon as possible to ensure the safety of the public and Reclamation employees and to protect critical national infrastructure and other critical water and power resource facilities. Reclamation will develop a mandatory orientation session for officers who are to be authorized to perform Reclamation law enforcement duties.

While this rule will be effective on the date published, Reclamation will accept and consider comments on the rule for 60 days after the date of publication. Among the issues on which Reclamation expects comments are the appropriate treatment of non-Department Federal officials under these regulations, the extent to which this framework for State and local law enforcement participation may be consistent with the diverse expectations of local communities across the seventeen Western States, and whether these and other issues should be addressed in regulation or in individual contracts or cooperative agreements.

III. Procedural Matters

National Environmental Policy Act

Reclamation has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required. The rule is categorically excluded from NEPA review under 40 CFR 1508.4, 516 DM 2, Appendix 1, § 1.10.

Executive Order 12866, Regulatory Planning and Review

This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy or adversely affect the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. While risk assessments at many critical facilities are not yet completed and thus total law enforcement contractual needs cannot be fully determined, it is estimated that the total start-up cost for implementing Public Law 107-69 will be in the range of $50—55 million in the first year. This estimate is based on contracting for around-the-clock law enforcement services at up to 60 critical facilities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The selection process for law enforcement personnel will be consistent with that used by the Department, thereby assuring that high professional law enforcement standards are maintained.

(3) This rule will not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule provides the legal authority to continue to safely provide services to project beneficiaries without the threat of terrorism and to protect their contractual rights and entitlements under Federal reclamation laws.

(4) This rule does not raise novel legal or policy issues. It is Reclamation's intent to utilize the established policies and guidelines on law enforcement being used in the Department.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Fairness Act. The rule:

(1) Will not have an annual effect on the economy of $100 million or more. A farm, according to the Small Business Administration (SBA), is a small business if it has annual receipts of less than $500,000. The vast majority of the 140,000 farms receiving Reclamation project irrigation water can be classified as “small businesses'' under the SBA definition. This rule will help maintain water deliveries to those farms.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule will have a negligible impact on local and regional costs or prices, but the presence of law enforcement officers and the enhanced security measures at key Reclamation projects may in fact help to stabilize the existing economic conditions located in the project area.

(3) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. In fact, the rule may create additional employment opportunities for local residents in Reclamation project areas. No effects are anticipated on local competition and/or investment opportunities as a result of this rule.

Unfunded Mandates Reform Act of 1995

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. Moreover, the rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq) is not required.

Executive Order 12630, Takings

In accordance with Executive Order 12630, the rule does not have significant takings implications. Thus, a takings implication assessment is not required, nor will the rule have any effect on the use and/or value of private property.

Paperwork Reduction Act

This rule does not require any information collection under the Paperwork Reduction Act. Therefore, an OMB Form 83-I is not required.

Executive Order 13132, Federalism

In accordance with Executive Order 13132, this rule does not have Federalism implications. A Federalism assessment is not required. The rule will not affect the roles, rights, and responsibilities of States in any way. Moreover, the rule will not result in the Federal Government taking control of traditional State responsibilities, nor will it interfere with the ability of States to formulate their own policies. In addition, the rule will not affect the distribution of power, the responsibilities among the various levels of government, nor preempt State law.

Executive Order 12988, Civil Justice Reform

In accordance with Executive Order 12988, the Department's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the Executive Order.

Executive Order 13211, Energy Impacts

In accordance with Executive Order 13211, the rule will not have a significant adverse effect on the supply, distribution, and use of energy. Therefore, a Statement of Energy Effects is not required.

Comments

If you wish to comment on this rule, you may submit your comments by one of two methods. You may mail comments to: Bureau of Reclamation, 1849 C Street NW., Washington, DC 20240, Attn: Henk Willems. You may also hand-deliver comments to the Bureau of Reclamation, Room 7610, Main Interior Building, 1849 C Street NW., Washington, DC 20240. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record. We will honor the request to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

List of Subjects in 43 CFR Part 422

• Law enforcement authority
• Law enforcement standards
• Law enforcement agreements
• Law enforcement officer responsibilities
• Law enforcement officer conduct

Dated: May 28, 2002.

Bennett W. Raley,

Assistant Secretary—Water and Science.

For the reasons stated in the preamble, Reclamation adds a new part 422 to title 43 of the Code of Federal Regulations as follows:

PART 422—LAW ENFORCEMENT AUTHORITY AT BUREAU OF RECLAMATION PROJECTS

422.1

Purpose of this part.

422.2

Definitions.

422.3

Reclamation law enforcement policy.

Responsibilities

422.4

Responsibilities of the Commissioner of Reclamation.

422.5

Responsibilities of the Law Enforcement Administrator.

422.6

Responsibilities of the Chief Law Enforcement Officer.

Program Requirements

422.7

Authorization to perform law enforcement duties.

422.8

Requirements for law enforcement functions and programs.

422.9

Reclamation law enforcement contracts and cooperative agreements.

422.10

Requirements for authorizing officers to exercise Reclamation law enforcement authority.

422.11

Position sensitivity and investigations.

422.12

Required standards of conduct.

422.13

Reporting an injury or property damage or loss.

Authority: 16 U.S.C. 460l-31; 43 U.S.C. 373b, 373c

422.1

Purpose of this part.

(a) This part implements Public Law No. 107-69, 115 Stat. 593 (November 12, 2001), an Act to Amend the Reclamation Recreation Management Act of 1992, by:

(1) Establishing eligibility criteria, such as fitness and training requirements, for Federal, State, local, and tribal law enforcement personnel to protect Bureau of Reclamation (Reclamation) facilities and lands; and

(2) Ensuring that Federal, State, local, and tribal law enforcement programs comply with applicable laws and regulations when they discharge the Secretary of the Interior's authority.

(b) This part does not apply to, or limit or restrict in any way, the investigative jurisdiction or exercise of law enforcement authority of any Federal law enforcement agency, under Federal law, within a Reclamation project or on Reclamation lands. The provisions of this part apply to non-Department of the Interior Federal law enforcement agents only where Reclamation has entered into a cooperative agreement or contract with a Federal law enforcement agency, pursuant to Public Law 107-69, for the services of specified individual Federal law enforcement agents.

(c) Nothing in this part shall be construed or applied to affect any existing right of a State or local government, or an Indian tribe, or their law enforcement officers, to exercise concurrent civil and criminal jurisdiction within a Reclamation project or on Reclamation lands.

422.2

Definitions.

(a) Department means the United States Department of the Interior.

(b) Reclamation means the Bureau of Reclamation of the United States Department of the Interior.

(c) Law Enforcement Program means Reclamation's program to provide law enforcement and protective services at Reclamation project facilities and on Federal project lands. The activity is directed toward the preservation of public order, safety, and protection of resources and facilities, and their occupants.

(d) Law Enforcement Administrator (LEA) means the person designated by the Commissioner of Reclamation to:

(1) Direct the law enforcement program and units;

(2) Develop the policy, procedures, and standards for the law enforcement program within Reclamation; and

(3) Provide for inspection and oversight to control enforcement activity.

(e) Chief Law Enforcement Officer (CLEO) means the highest level duly authorized law enforcement officer for a non-Department law enforcement agency.

(f) Law Enforcement Officer means:

(1) A duly authorized Federal law enforcement officer, as that term is defined in Public Law 107-69, from any non-Department Federal agency who is authorized to act as a law enforcement officer on Reclamation projects and lands; or

(2) Law enforcement personnel of any State, local government, or tribal law enforcement agency.

§ 422.3

Reclamation law enforcement policy.

The law enforcement policy of Reclamation is:

(a) To maintain an accountable, professional law enforcement program on Reclamation project facilities, and to protect Federal project lands and their occupants. Reclamation will meet its law enforcement responsibilities by establishing and promoting a law enforcement program which maintains law and order, and protects persons and property within Reclamation property and on Reclamation lands;

(b) To entrust law enforcement authority only to persons deemed to be qualified, competent law enforcement professionals;

(c) To maintain a continuing review and evaluation of Reclamation's law enforcement programs and operations to ensure compliance with applicable Federal laws, regulations, and policies of the Department;

(d) To ensure that approved standards are attained and maintained by each law enforcement unit undertaking a contract or cooperative agreement;

(e) To increase the effectiveness of law enforcement through the efficient handling and exchange of criminal and intelligence information with other Federal, State, local, and tribal agencies, as appropriate;

(f) To provide the public prompt access to information concerning its law enforcement program in accordance with the spirit and intent of the Freedom of Information Act, 5 U.S.C. 552; Department FOIA Regulations, 43 CFR 2; and 383 DM 15, Freedom of Information Act Handbook (see www.doi.gov);​;

(g) To ensure that the use of force by agency personnel under contracts or cooperative agreements with Reclamation complies with the Constitution and the law of the United States; and

(h) To negotiate contracts and cooperative agreements under this part to ensure that:

(1) Reclamation retains flexibility to meet its law enforcement needs; and

(2) Entities entering into contracts and cooperative agreements are appropriately reimbursed.

Responsibilities

422.4

Responsibilities of the Commissioner of Reclamation.

(a) The Secretary of the Interior has designated the Commissioner of Reclamation to implement law enforcement authority at Reclamation facilities. The Commissioner is responsible for:

(1) Implementing the provisions of Public Law 107-69;

(2) Ensuring consistency with applicable Departmental and Reclamation requirements for law enforcement officers;

(3) Carrying out the specific responsibilities listed in paragraph (b) of this section; and

(4) Developing any additional policies necessary for the successful accomplishment of Reclamation's law enforcement responsibilities.

(b) The Commissioner's specific responsibilities include the following:

(1) Designating Reclamation's Law Enforcement Administrator (LEA), with authority to discharge the responsibilities assigned by these regulations;

(2) Overseeing the LEA's ability to ensure that all law enforcement officers under contract or cooperative agreement for law enforcement services to Reclamation are properly trained and receive necessary authorizations; and

(3) Overseeing the LEA's development of policy, procedures, and standards for directing the law enforcement units, and the installation of management controls for proper implementation of the law enforcement program.

422.5

Responsibilities of the Law Enforcement Administrator.

(a) The Law Enforcement Administrator (LEA):

(1) Reports directly to the Commissioner;

(2) Oversees the law enforcement program; and

(3) Is responsible for promulgating mission-oriented policy, procedures, and standards to ensure the effective implementation of Reclamation's law enforcement authority.

(b) The chain of command for law enforcement will run from the Commissioner through the LEA to other positions designated as part of the Reclamation law enforcement managerial structure, which may include a Chief Law Enforcement Officer. The units will be staffed through cooperative agreements or contracts with law enforcement personnel from Department and non-Department Federal agencies or State, local, or tribal law enforcement organizations, with unit command being provided as part of the cooperative agreement or contract.

(c) Within the chain of command specified in paragraph (b) of this section, the LEA provides policy direction, inspection, and oversight for the law enforcement functions of Reclamation.

§ 422.6

Responsibilities of the Chief Law Enforcement Officer.

The Chief Law Enforcement Officer's (CLEO) responsibilities are to ensure that:

(a) Law enforcement officers working at Reclamation facilities and on Federal project lands are duly authorized under § 422.7;

(b) Law enforcement officers authorized under a contract or cooperative agreement meet training and fitness requirements established in this part and abide by standards of conduct and performance established in this part and in the contract or cooperative agreement;

(c) Law enforcement officers are under the immediate supervision of a commanding officer who is part of each law enforcement unit for which Reclamation enters into a contract or cooperative agreement; and

(d) Required reports are made to the LEA, or to another person designated by Reclamation, for purposes of carrying out the law enforcement functions for which Reclamation has a contract or cooperative agreement.

Program Requirements

§ 422.7

Authorization to perform law enforcement duties.

(a) The CLEO must issue written authorization to each officer who is authorized to perform Reclamation law enforcement duties.

(b) Before issuing an authorization under paragraph (a) of this section, the CLEO must ensure that the officer meets:

(1) All the requirements for officers authorized under the law enforcement contract or cooperative agreement with Reclamation; and

(2) All requirements in §§ 422.10, 422.11, and 422.12.

(c) The CLEO must terminate an officer's authorization under paragraph (a) of this section and must notify the issuing Reclamation official when the officer:

(1) Terminates employment as a full-time police officer for any reason;

(2) Is transferred to another area of jurisdiction, where the continued performance of Reclamation duties would be impractical;

(3) Is suspended for any offense that would impair his/her fitness to perform law enforcement duties; or

(4) Is under indictment or has been charged with a crime.

(d) The LEA can, upon showing just cause, revoke the authorization of an individual officer to perform law enforcement services under Reclamation's law enforcement authority after providing written notice to the CLEO.

§ 422.8

Requirements for law enforcement functions and programs.

The requirements in this section apply to Reclamation and to each law enforcement unit exercising Reclamation's law enforcement authority.

(a) The law enforcement program must provide for control, accountability, coordination, and clear lines of authority and communication. This organizational structure must apply both within the law enforcement units, and between the law enforcement units and the LEA or other personnel designated as responsible under the law enforcement contract or cooperative agreement.

(b) Only duly authorized law enforcement officers may discharge law enforcement duties.

(c) Each law enforcement contract or cooperative agreement must specifically name those individuals within the contracting agency who are authorized to exercise Reclamation law enforcement authority consistent with applicable laws, regulations, and the requirements of this part. A CLEO can authorize only duly authorized officers who meet the standards in § 422.7 to exercise law enforcement authority.

(d) Any uniform worn by law enforcement officers must display distinctive identification to ensure that the officer is:

(1) Distinguishable from non-law enforcement personnel; and

(2) Easily recognized by the public as a law enforcement officer.

(e) Officers investigating a violation of Federal law under a law enforcement contract or cooperative agreement with Reclamation will notify applicable Federal law enforcement authorities, as appropriate, pursuant to 43 U.S.C. 373b(d)(4).

(f) The LEA must:

(1) Establish an incident reporting system for incidents that occur on Reclamation lands; and

(2) Include the reporting requirements for incidents as an element of each contract or cooperative agreement.

§ 422.9

Reclamation law enforcement contracts and cooperative agreements.

(a) The LEA, or a person that the LEA designates, may enter into contracts or cooperative agreements with Federal, State, local, or tribal law enforcement agencies to aid in enforcing or carrying out Federal laws and regulations on Reclamation facilities or Reclamation-managed property. Reclamation will rescind the contract or cooperative agreement if an elected governing body with jurisdiction over the local law enforcement agency adopts a resolution objecting to the use of that agency's personnel to enforce Federal laws.

(b) Each contract and cooperative agreement authorizing the exercise of Reclamation law enforcement authority:

(1) Must expire no later than 3 years from its effective date;

(2) May be revoked earlier by either party with written notice;

(3) May be revised or amended with the written consent of both parties;

(4) Must expressly include the requirements for exercise of Reclamation law enforcement authority listed in § 422.10;

(5) Must expressly state that the officer has completed the Federal Bureau of Investigation criminal history review as required by § 422.11; and

(6) Must expressly include the standards of conduct listed in section 422.12.

§ 422.10

Requirements for authorizing officers to exercise Reclamation law enforcement authority.

(a) The CLEO must ensure that each officer receiving an authorization under § 422.7(a):

(1) Is at least 21 years old;

(2) Is certified as a bona fide full-time peace officer under State Peace Officer Standards and Training (POST) requirements, or its functional equivalent or is certified as a Federal law enforcement officer;

(3) Has passed his/her agency's firearms qualifications (which must be consistent with Federal policy) within the 6-month period immediately preceding the granting of the authority;

(4) Re-qualifies to use firearms with all issued service weapons at least semi-annually;

(5) Has neither been convicted of a felony offense, nor convicted of a misdemeanor offense for domestic violence, preventing him/her from possessing a firearm in compliance with section 658 of Public Law 104-208 (the 1996 amendment of the Gun Control Act of 1968);

(6) Is not the subject of a court order preventing him/her from possessing a firearm;

(7) Has no physical impairments that will hinder performance as an active duty law enforcement officer; and

(8) Attends and successfully completes a mandatory orientation session developed by Reclamation to become familiar with Federal laws and procedures and with all pertinent provisions of statutes, ordinances, regulations, and Departmental and Reclamation rules and policies.

(b) Qualification standards for guards as provided in the Departmental Manual or other Department or Reclamation guidance may only be used for those persons hired exclusively to perform guard duties.

§ 422.11

Position sensitivity and investigations.

Each law enforcement contract or cooperative agreement must include a provision requiring the CLEO to certify that each officer who exercises authority under the Act has completed an FBI criminal history check and is satisfactorily cleared.

§ 422.12

Required standards of conduct.

All law enforcement officers authorized to exercise Reclamation authority must adhere to the following standards of conduct:

(a) Be punctual in reporting for duty at the time and place designated by superior officers;

(b) Be mindful at all times and under all circumstances of their responsibility to be courteous, considerate, patient and not use harsh, violent, profane, or insolent language;

(c) Make required reports of appropriate incidents coming to their attention;

(d) When in uniform and requested to do so, provide their name and identification/badge number orally or in writing;

(e) Immediately report any personal injury or any loss, damage, or theft of Federal government property as required by § 422.13;

(f) Not be found guilty in any court of competent jurisdiction of an offense that has a tendency to bring discredit upon the Department or Reclamation;

(g) Not engage in any conduct that is prejudicial to the reputation and good order of the Department or Reclamation; and

(h) Obey all regulations or orders relating to the performance of the unit's duties under the Reclamation contract or cooperative agreement.

§ 422.13

Reporting an injury or property damage or loss.

(a) An officer must immediately report orally and in writing to his/her supervisor any:

(1) Injury suffered while on duty; and

(2) Any loss, damage, or theft of government property.

(b) The written report must be in detail and must include names and addresses of all witnesses.

(c) When an officer's injuries prevent him/her from preparing a report at the time of injury, the officer's immediate supervisor must prepare the report.

(d) The supervisor must submit all reports made under this section to the Reclamation official designated to receive them, as soon as possible after the incident occurs.